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JudgmentKANGETHE TUTI VS The Republic4 min read

KANGETHE TUTI VS The Republic

High Court at Voi High Court · · Asenath Ongeri

  1. The Appellant was sentenced to death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code on 1st February 2017.
  2. The Appellant was also sentenced to 20 years imprisonment for the offence of gang rape.
  3. The Appellant appealed to the High Court and the appeal against conviction was dismissed but the matter was remitted to the trial court for resentencing following the Muruatetu case.
  4. However the Supreme Court has since clarified that the Muruatetu case is only applicable in murder cases.
  5. When the case was remitted to the trial court, the Appellant sentenced to life imprisonment and the death penalty was set aside.
  6. He has now appealed against the sentence of life imprisonment.
  7. I have considered the submissions filed by both parties.
  8. The appellant submitted that he is dissatisfied with the life sentence imposed during resentencing by the magistrate's court in Voi,
  9. He has appealed under Paragraph 4.8.26 of the Sentencing Policy Guidelines, 2023, which grants offenders the right to appeal a resentencing decision.
  10. The appellant submitted  that the life sentence is excessively harsh, akin to the initial death penalty, and fails to align with the principles of just punishment, deterrence, rehabilitation, community protection, and denunciation as outlined in precedents such as R vs. Jagani & Another and Kennedy Indililema Omuse vs. Republic.
  11. The appellant highlights his status as a first-time offender with no prior convictions, emphasizing the profound psychological and sociological toll of indefinite imprisonment, which undermines rehabilitation and reintegration.
  12. He further contends that life imprisonment violates constitutional guarantees of human dignity and proportionality, citing the cases of Evans Nyamari Ayako vs. Republic and Manyeso vs. Republic, where courts declared such sentences unconstitutional. The appellant also raised confusion over whether the life sentence includes a separate 20-year gang rape sentence left in abeyance and requests consolidation or concurrent sentencing if resentencing is granted.
  13. Referencing recent jurisprudence (Maingi & 5 Others vs. DPP, Sebastian Okwaro Mrefu vs. Republic), the appellant argued that prolonged incarceration—already spanning years—constitutes sufficient punishment.
  14. He express remorse, detailing personal reform during imprisonment and a commitment to societal contribution if released. The appellant urged the court to apply Section 333(2) of the CPC to credit time spent in pretrial custody, as upheld in Ahamad Abolfathi Mohammed & Another vs. Republic, and seeks a determinate sentence or release based on time served, aligning with precedents like Martin Bahati Makhoha vs. Republic.
  15. In conclusion, the appellant appeals for a second chance, asserting his transformation and readiness to reintegrate as a law-abiding citizen, and requests the court’s intervention to replace the life sentence with a proportionate, rehabilitative alternative.
  16. The Appellant submitted that the life imprisonment is unethical to human dignity and is degrading and inhuman.
  17. The respondent's written submissions opposed the appellant's appeal against a life imprisonment sentence for two counts of robbery with violence under Section 296(2) of the Penal Code.
  18. Initially sentenced to death by the trial court, the appellant successfully appealed to the High Court, which ordered a resentencing. On December 3, 2019, the lower court resentenced him to life imprisonment.
  19. The appellant now challenges this decision, arguing that life imprisonment violates human dignity and constitutes inhuman and degrading treatment, citing the case of Manyeso v Republic (Criminal Appeal 12/2021).
  20. The respondent submitted that the trial court acted within its discretion by commuting the death sentence to life imprisonment, which remains constitutional and legally permissible.
  21. Since the Penal Code still prescribes the death penalty for robbery with violence and has not been amended, the respondent contends that the appeal lacks merit and should be dismissed. The respondent maintains that the life sentence is justified and aligns with existing legal provisions.
  22. The sole determination in this case is whether the sentence of life imprisonment meted by the Trial Court is excessively harsh in the circumstances of this case.
  23. The appellant submitted that the sentence of life imprisonment does not align with the principles of just punishment, deterrence, rehabilitation, community protection.
  24. The Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared the mandatory death penalty for murder unconstitutional, requiring individualized sentencing. However, the Court later clarified in Muruatetu II [2021] that the decision applies only to murder cases, not robbery with violence.
  25. I find that the trial court considered the peculiar circumstances of this case and properly exercised its discretion in meting the sentence of life imprisonment in this case.
  26. This case involved both robbery with violence and gang rape and it is a deserving case for life imprisonment as measure of deterrence.
  27. The said sentence is constitutional and I find no reason to tamper with the same.
  28. I dismiss the appeal against sentence for want of merit.
  29. The appellant has a right of appeal to the Court of Appeal within 14 days.

Dated, signed and delivered this 9th day of May 2025 virtually via MT at Voi High Court.

ASENATH ONGERI

JUDGE

In the presence of:-

Court Assistant: Maina/Millicent

    KANGETHE TUTI VS The Republic KANGETHE TUTI VS The Republic